The Volokh Conspiracy -

Terminally Ill Patients' Right to Get Potentially Life-Saving Medication:

I just read the D.C. Circuit's opinion that recognized "the right of a mentally competent, terminally ill adult patient to access potentially life-saving post-Phase I investigational new drugs, upon a doctor's advice, even where that medication carries risks for the patient." I'm sure others will say plenty about the usual unenumerated rights debates; but I wanted to raise a question that I didn't see discussed in the D.C. Circuit decision — why isn't Roe v. Wade (as preserved in Casey v. Planned Parenthood) strong precedential support for that decision?

Roe concluded that the Constitution secures a right to an abortion, but it may be more accurate to say that it secured two different, though related, rights. First, it secured a right to an abortion during the first two trimesters (Casey has since cut this back to before viability); the government is entitled, especially after Casey, to regulate such abortions, but it can't prohibit them. This right vindicates the woman's right to choose not to bear a child.

Second, though, Roe held that even after viability — when the state is generally entitled to protect fetal life, and thus to ban most abortions — the woman still has a right to an abortion "when it is necessary to preserve the life or health of the mother." This right does not vindicate the woman's right to choose not to bear a child, since absent the threat to the woman's life, she can no longer get an abortion. Its purpose must be to vindicate the woman's right to protect her own life and health, even using a medical procedure that will kill the now-viable fetus.

Now of course those who strongly oppose Roe and Casey might not want to see them extended; one error, they'd reason, doesn't require others.

But if one accepts this second abortion right that I discussed above, or one is at least willing to accept it as binding precedent, why doesn't this precedent strongly point towards recognizing terminally ill patients' right to get potentially life-saving medication? (Note, by the way, that this is a right in the negative liberty sense of freedom from government prohibition, not a positive entitlement to government funding to the medication.) If pregnant women are entitled to protect their lives or even just their health using medical procedures, why don't others patients have an equal entitlement?

True, the government may have an important interest — which is generally absent as to abortions, which tend not to be dangerous as a rule — in protecting a patient's life and health against the potential dangers of experimental drugs. Yet surely this interest is extremely weak when the patient is already terminally ill, and the risks of doing nothing probably far outweigh the risks of trying something.

So can it be that a person has a constitutional right to get potentially life-saving treatment, but only when that potentially life-saving treatment involves the killing of a viable fetus that she is carrying?

I put the question (and much of this post) in an intentionally provocative way, to make it more fun to read; but I should stress that it is a real question, not just a rhetorical one, and there may well be important arguments that I'm missing. Please do let me know what those arguments might be.

	[Jonathan Adler, May 2, 2006 at 3:53pm] Trackbacks A Constitutional Right to Drugs: Today, in Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, a divided panel of the U.S. Court of Appeals for the D.C. Circuit held that the Due Process Clause protects "the right of a mentally competent, terminally ill adult patient to access potentially life-saving . . . drugs, upon a doctor's advice, even where that medication carries risks for the patient" and has not been approved for commercial sale by the Food & Drug Administration, but where the FDA has determined that the drug is safe enough for broad ("post Phase I") testing on human subjects. According to the majority opinion, written by Judge Judith Rogers and joined by Chief Judge Douglas Ginsburg, this right "can be inferred from the [Supreme] Court's conclusion in Cruzan v. Director, Missouri Department of Health that an individual has a due process right to refuse life-sustaining medical treatment." The right at issue here, according to Judge Rogers, implicates the same fundamental issue "the patient's right to make the decision about her life free from government interference." Judge Thomas Griffith dissented. Orin Kerr has more thoughts here. UPDATE: In reference to Eugene's post above, it is worth noting that the D.C. Circuit explicitly rejected relying on the "line of cases beginning with Griswold v. Connecticut, and continuing through Eisenstadt v. Baird, **Roe v. Wade, and [Planned Parenthood of Southeastern Pa. v.] Casey*," and instead relied on the "more restrictive" approach embodied by the right-to-die cases, particularly Washington v. Glucksberg. Under the latter approach, the Due Process Clause only protects as fundamental those rights that are "objectively, deeply rooted in this Nation's history and tradition," and are "implicit in the concept of ordered liberty, such that neither liberty nor justice would exist" were they not protected as such. Because the majority found the right claimed met this test, it did not have to consider whether the abortion cases -- what the majority opinion termed the "personal dignity and autonomy" line of cases -- also support the claim. I see at least two possible reasons for the Court's approach. First, by relying on the "more restrictive" Glucksberg* approach -- an approach that some of the more conservative justices have endorsed -- the opinion is not staking out as bold a claim. Second, should the Roberts Court revisit, and perhaps even restrict or reverse, some of the abortion precedents, the D.C. Circuit's holding would remain secure. Avoiding any reliance on the abortion cases would also seem to insulate the opinion from at least some potential criticism for being "activist." Related Posts (on one page): Terminally Ill Patients' Right to Get Potentially Life-Saving Medication: A Constitutional Right to Drugs: Comments [Eugene Volokh, May 2, 2006 at 4:32pm] Trackbacks Terminally Ill Patients' Right to Get Potentially Life-Saving Medication: I just read the D.C. Circuit's opinion that recognized "the right of a mentally competent, terminally ill adult patient to access potentially life-saving post-Phase I investigational new drugs, upon a doctor's advice, even where that medication carries risks for the patient." I'm sure others will say plenty about the usual unenumerated rights debates; but I wanted to raise a question that I didn't see discussed in the D.C. Circuit decision — why isn't Roe v. Wade (as preserved in Casey v. Planned Parenthood) strong precedential support for that decision? Roe concluded that the Constitution secures a right to an abortion, but it may be more accurate to say that it secured two different, though related, rights. First, it secured a right to an abortion during the first two trimesters (Casey has since cut this back to before viability); the government is entitled, especially after Casey, to regulate such abortions, but it can't prohibit them. This right vindicates the woman's right to choose not to bear a child. Second, though, Roe held that even after viability — when the state is generally entitled to protect fetal life, and thus to ban most abortions — the woman still has a right to an abortion "when it is necessary to preserve the life or health of the mother." This right does not vindicate the woman's right to choose not to bear a child, since absent the threat to the woman's life, she can no longer get an abortion. Its purpose must be to vindicate the woman's right to protect her own life and health, even using a medical procedure that will kill the now-viable fetus. Now of course those who strongly oppose Roe and Casey might not want to see them extended; one error, they'd reason, doesn't require others. But if one accepts this second abortion right that I discussed above, or one is at least willing to accept it as binding precedent, why doesn't this precedent strongly point towards recognizing terminally ill patients' right to get potentially life-saving medication? (Note, by the way, that this is a right in the negative liberty sense of freedom from government prohibition, not a positive entitlement to government funding to the medication.) If pregnant women are entitled to protect their lives or even just their health using medical procedures, why don't others patients have an equal entitlement? True, the government may have an important interest — which is generally absent as to abortions, which tend not to be dangerous as a rule — in protecting a patient's life and health against the potential dangers of experimental drugs. Yet surely this interest is extremely weak when the patient is already terminally ill, and the risks of doing nothing probably far outweigh the risks of trying something. So can it be that a person has a constitutional right to get potentially life-saving treatment, but only when that potentially life-saving treatment involves the killing of a viable fetus that she is carrying? I put the question (and much of this post) in an intentionally provocative way, to make it more fun to read; but I should stress that it is a real question, not just a rhetorical one, and there may well be important arguments that I'm missing. Please do let me know what those arguments might be. Related Posts (on one page): Terminally Ill Patients' Right to Get Potentially Life-Saving Medication: A Constitutional Right to Drugs: Comments